CRF Blog

Fire in a ‘Crowded Theater’

by Damon Huss

Ever since I was a kid, I have heard people say that we have free speech in the U.S., “but you can’t yell ‘Fire!’ in a crowded theater.” Well, not so fast. Justice Oliver Wendell Holmes’ actual quote in the case of Schenck v. U.S. (1919) is: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” (Emphasis added.)

In other words, if I’m in a theater, and there really is a fire that could harm people, I think I would want someone to yell “Fire!” The problem, according to Holmes, really occurs when someone (1) does so falsely, and (2) it causes a panic.

Here’s an analysis of the legacy of this most famous judicial quote, written by David L. Hudson, Jr. at the First Amendment Center:

Holmes said that in times of war the government can place greater restrictions on freedom of speech.

Holmes’ classic “fire in a theatre” metaphor is perhaps the most quoted phrase from First Amendment jurisprudence. Unfortunately, it is usually used by someone advocating the restriction of First Amendment expression.

Even former world heavyweight champion Mike Tyson used the phrase during an interview, responding to criticism in the news media for outrageous comments about an opponent. Tyson said his comments did not rise to the level of a false fire warning.